IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC0011 of 2001

BETWEEN

THE STATE

AND

TIMOCI SILATOLU
First Prisoner/Respondent

And

JOSEFA NATA
Second Prisoner/Respondent

And

THE ATTORNEY-GENERAL OF FIJI
Intervener

And

THE HUMAN RIGHTS COMMISSION
Intervener (by leave)

Counsel:
Mr P. Ridgway and Mr. N. Kurisaqila for the State
Mr. S. Valenitabua for the First Prisoner/Respondent
Ms. M. Waqavonovono and Ms. P. Narayan for the Second Prisoner/Respondent
Ms. N. Baswaiya for the Attorney-General
Dr. S. Shameem and Mr. V. Ratuvili for the Human Rights Commission

Dates of Hearing 21, 25 and 26 March, 11, 12 and 26 June 2003
Date of Decision 27 June 2003

REASONS FOR DECISION OF WILSON J IN RELATION TO SOME CONSTITUTIONAL QUESTIONS AS TO THE VALIDITY OF RETROSPECTIVE LEGISLATION APPLYING TO PENDING CRIMINAL PROCEEDINGS AND OTHER QUESTIONS

SOME PRELIMINARY OBSERVATIONS

On 21 March 2003 the two respondents (hereinafter variously called "the prisoner Silatolu" and "the prisoner Nata" respectively or "the two prisoners") were each found guilty of treason (and each was convicted) for their respective roles in the abortive coup in May to July 2000.

It was undoubtedly the law of the Fiji Islands at the time of that abortive coup that treason was punishable by the mandatory death sentence. That was undoubtedly still the law of the Fiji Islands on and shortly after 18 February 2002, the date when Mr. George Speight pleaded guilty to treason for his role in the coup and when he received the mandatory death sentence; such sentence was commuted, within a few hours thereafter, to life imprisonment as a consequence of the exercise by the President of the Fiji Islands of the prerogative of mercy in accordance with "the long-established constitutional way of doing so" in Fiji "as in England"1.

Had not the Parliament a few days thereafter proceeded to amend, and later further amend, the Penal Code and had not the Parliament purported to make the amendments retrospective so as to apply to the two prisoners, it would have been my judicial duty to sentence each of the two prisoners to death. Subject only to my complying with section 115(4)(a)(i) of the Constitution, that would have completed my judicial responsibility as the trial and sentencing judge. Although it would have been a matter entirely for the President in the exercise of his independent constitutional power as to whether or not to exercise the prerogative of mercy for either or both of the two prisoners in the same manner as in the case of Mr Speight or in some other manner, each of the two prisoners may well have had a legitimate expectation that the prerogative would have been exercised in their favour.

However, certain amendments to the Penal Code having been enacted, some questions of profound legal and constitutional importance need to be decided and also other questions of a more technical nature need to be resolved.

THE PROSECUTOR'S APPLICATION

By notice of motion dated 26 March 2003 counsel for the prosecution applied for the determination, prior to the sentencing of the two prisoners, of the issues whether the Penal Code (Amendment) Act 2002 (hereinafter called "the Amending Act") [section 2 thereof in particular], in so far as it purports to amend section 50 of the Penal Code inter alia by deleting "shall be sentenced to death" and substituting "is liable on conviction to imprisonment for life" and in so far as it purports to have the Act apply to "charges or proceedings under section 50 (and other sections) of the Code that were pending at the commencement of” the Amending Act, is a valid law of the Republic of the Fiji Islands, and some alternative issues.

THE RELEVANT CONSTITUTIONAL PROVISIONS

The Preamble to the 1997 Constitution (as amended in 1998) - hereinafter referred to as "the Constitution") provides:

"WE, THE PEOPLE OF THE FIJI ISLANDS, … REAFFIRMING our recognition of the human rights and fundamental freedoms of all individuals and groups, safeguarded by adherence to the rule of law, and our respect for human dignity and for the importance of the family ... GIVE OURSELVES THIS CONSTITUTION".

Section 1 of the Constitution provides:

"1. The Republic of the Fiji Islands is a sovereign, democratic state."

Section 2 of the Constitution provides:

"2.- (1) This Constitution is the supreme law of the State.
(2) Any law (that is) inconsistent with this Constitution is invalid to the extent of the inconsistency."

Section 3 of the Constitution provides:

"3. In the interpretation of a provision of this Constitution:
(a) a construction that would promote the purpose or object underlying the provision, taking into account the spirit of this Constitution as a whole, is to be preferred to a construction that would not promote that purpose or object; and
(b) regard must be had to the context in which this Constitution was drafted and to the intention that constitutional interpretation take into account social and cultural development, especially:
(i) developments in the understanding of the content of particular human rights; and
(ii) developments in the promotion of particular human rights."

Chapter 2 of the Constitution contains the COMPACT. Section 6 provides:

"6. The people of the Fiji Islands recognise that, within the framework of this Constitution and the other laws of the State, the conduct of government is based on the following principles:
(a) the rights of all individuals, communities and groups are fully respected;
.................
(e) as citizens, the members of all communities enjoy equal rights, including the right to make their permanent homes in the Fiji Islands;
................
(i) to the extent that the interests of different communities are seen to conflict, all the interested parties negotiate in good faith in an endeavour to reach agreement;
.................
(k) affirmative action and social justice programs to secure effective equality of access to opportunities, amenities or services for the Fijian and Rotuman people, as well as for other communities, for women as well as men, and for all disadvantaged citizens or groups, are based on an allocation of resources broadly acceptable to all communities.
............."

At Section 22 of the BILL OF RIGHTS part of the Constitution (CHAPTER 4) provides:

"22. Every person has the right to life. A person must not be arbitrarily deprived of life."

Section 25(1) of the Constitution provides:-

"25.-(1) Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment."

Section 28 of the Constitution, in a section dealing with the rights of charged persons, provides:

28.-(1) Every person charged with an offence has the right:
..........
(j) not to be found guilty in respect of an act or omission unless the act or omission constituted an offence at the time it occurred, and not be sentenced to a more severe punishment than was applicable when the offence was committed;"

Section 38(1) of the Constitution provides:

"38.-(i) Every person has the right to equality before the law."

Section 41 of the Constitution provides for the enforcement of rights. Section 41 provides:

"41.-(1) If a person considers that any of the provisions of this Chapter has been or is likely to be contravened in relation to him or her (or, in the case of a person who is detained, if another person considers that there has been, or is likely to be, a contravention in relation to the detained person), then that person (or the other person) may apply to the High Court for redress.
(2) The right to make application to the High Court under subsection (1) is without prejudice to any other action with respect to the matter that the person concerned may have.
(3) The High Court has original jurisdiction:
(a) to hear and determine applications under subsection (1); and
(b) to determine questions that are referred to it under subsection (5);
and may make such orders and give such directions as it considers appropriate.
(4) The High Court may exercise its discretion not to grant relief in relation to an application or referral made to it under this section if it considers that an adequate alternative remedy is available to the person concerned.
(5) ........
(6) ........
(7) The Attorney-General may, on behalf of the State, intervene in proceedings before the High Court that relate to a matter concerning a provision of this Chapter.
(8) If proceedings before the High Court relate to a matter concerning a provision of this Chapter, the High Court must not proceed to hear and determine the matter until it is satisfied that notice of the matter has been given to the Attorney-General and a reasonable time has elapsed since the giving of the notice for consideration by the Attorney-General of the question of intervention in the proceedings.
(9) A notice under subsection (8) is not required to be given to the Attorney-General if the Attorney-General or the State is a party to the proceedings.
(10) The Chief Justice may make rules for the purposes of this section with respect to the practice and procedure of the High Court (including rules with respect to the time within which applications are to be made to the High Court)."

Section 43 of the Constitution deals with the matter of interpretation. Section 43(2) provides:

"(2) In interpreting the provisions of this Chapter, the Courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights set out in this Chapter."

Section 45 of the Constitution deals with the legislative power of the State. Section 45 provides:

"45. The power to make laws for the State vests in a Parliament consisting of the President, the House of Representatives and the Senate."

Section 46 of the Constitution (before the amendment thereof in 1998) provided:

"46.-(1) Subject to this Constitution, the power of the Parliament to make laws is exercised through the enactment of Bills passed by both Houses of the Parliament assented to by the President.
(2) The President must not refuse to assent to a Bill duly presented for his or her assent.
(3) A law made by the Parliament does not come into operation before the date on which it is published in the Gazette."

Subsection (3) of section 46 the Constitution was repealed by the Constitution (Amendment) Act 1998.

Section 5 of the Constitution (Amendment) Act provides:

"5. Section 46 of the Principal Act is amended by omitting subsection (3)."

Section 85 of the Constitution deals with the executive authority of the State. Section 85 provides:

"85. This section establishes the office of the President. The executive authority of the State is vested in the President."

Section 117 of the Constitution deals with the judicial power of the State. Section 117 provides:

"117.-(1) The judicial power of the State vests in the High Court, the Court of Appeal and the Supreme Court and in such other courts as are created by law.
(2) The Supreme Court is the final appellate court of the State."

Section 118 of the Constitution deals with the independence of the judicial branch. Section 118 provides:

"118. The judges of the State are independent of the legislative and executive branches of government."

THE RELEVANT PENAL STATUTORY PROVISIONS

Section 50 of the Penal Code (Cap 17) provides (as in May to July 2000 and as at 18 February 2002):

"50. Any person who .... is guilty of the offence termed treason … shall be sentenced to death."

Act 5 of 2002 is the Penal Code (Amendment) Act 2002 was passed by the House of Representatives on 25 February 2002, passed by the Senate on 6 March 2002, and assented to by the President on 11 February (sic - March) 2002. Section 1 of the Act provides:

"1.-(1) This Act may be cited as the Penal Code (Amendment) Act 2002 and comes into force on the day it is assented to by the President.
[11 February (sic - March) 2002]
(2) In this Act, the Penal Code (Cap. 17) is referred to as the Code."

Section 2 of the Act provides:

"2.-(1) The Code is amended –
(a) In sections 50 and 51 by deleting "shall be sentenced to death" and substituting "is liable on conviction to imprisonment for life."
(b) In Section 69(2)(a) by deleting "be sentenced to death" and substituting "be liable to imprisonment for life".
(2) For the avoidance of doubt, this Act applies to charges or proceedings under section 50, 51 or 69(2) of the Code that are pending at the commencement of this Act."

The Penal Code was further amended by the Penal Code (Penalties) (Amendment) Act 2003 during the course of the hearing of this application. This Act was passed by the House of Representatives on 8 May 2003, passed by the Senate on 28 May 2003 assented to by the President on 4 June 2003 and came into force on the date when it was published in the Gazette on 6 June 2003.

Section 33 of the Penal Code deals with the question of what is the minimum period of imprisonment to be served by a person sentenced to imprisonment for life. Section 33 of the original Act (the Penal Code) provided:

"33. Whenever a sentence of imprisonment for life is imposed on any convicted person the judge who imposes the sentence may recommend the minimum period which he considers the convicted person should serve."

That section was repealed by section 2 of the Penal Code (Penalties) (Amendment) Act 2003 and the following section was substituted:

"33. Where an offence in any written law prescribes a maximum term of imprisonment for ten years or more, including life imprisonment, any court passing sentence for such offence may fix the minimum period which the court considers the convicted person must serve."

THE RELEVANT INTERPRETATION PROVISIONS

Section 28(2) of the Penal Code provides:

"28.-(2) A person liable to imprisonment for life or any other period may be sentenced for (sic-to) any shorter term."

Sections 60 and 60A of the Interpretation Act (Cap 7 as amended by Decree No. 35 of 1989 and Act No. 6 of 1998) provide:

"60.-(1) Where in any written law a penalty is prescribed for an offence under that law, such provision shall, unless a contrary intention appears, mean that the offence shall be punishable by penalty not exceeding the penalty prescribed.
(2) Where in any written law more than one penalty is prescribed for an offence, the use of the word "and" shall, unless a contrary intention appears, mean that the penalties may be inflicted alternatively cumulatively.
60A.-(1) Except so far as the contrary intention appears, a penalty, whether pecuniary or otherwise, set out -
(a) at the foot of any section of an Act; or
(b) at the foot of any subsection of any section,
indicates that any contravention of the section or subsection, as the case may be, is an offence against the Act punishable upon conviction by a penalty not exceeding the penalty so set out.
(2) Subsection (1) applies to an instrument made under an Act (including regulations, rules or bylaws) as if the instrument were an Act and as if such regulation, rule or by-law were a section of an Act."

THE POST-18 FEBRUARY 2002 HISTORY OF THE PENALTY PROVISIONS FOR TREASON

On 18 February 2002, the date upon which Mr George Speight was sentenced to death (albeit with the death sentence being, as I have already stated, commuted to, life imprisonment within a few hours of the death sentence having been passed), the penalty provision (in section 50 of the Penal Code) was as follows:

"50. Any person who ... is guilty of the offence termed treason …. shall be sentenced to death."

This meant that a person found guilty of treason was to receive a mandatory death sentence.

On 11 March 2002, the date upon which the Amending Act came into force, the penalty provision (in section 50 and other sections) was amended so as to reduce the penalty by deleting the words "shall be sentenced to death" and by substituting the words "is liable on conviction to imprisonment for life" [section 2(1)(a) of the Amending Act]. Notwithstanding the view widely held at or shortly before that date (and, indeed, advanced by some counsel during the hearing of this application) that "liable on conviction to imprisonment for life" meant that a person found guilty of treason was to receive a mandatory sentence of life imprisonment, there can be no doubt that, by virtue of the provisions of sections 60 and/or 60A of the Interpretation Act (Cap 17 as amended by Decree No. 35 of 1989 and Act No. 6 of 1998), and, further and in the alternative, by virtue of the provisions of section 28(2) of the Penal Code, the words "liable ... to imprisonment for life" mean "shall be punishable by a penalty not exceeding the penalty described or set out," that is to say, a discretionary sentence of life imprisonment.

If I may be pardoned for using a football expression to describe what has occurred between 11 March 2002 and 6 June 2003 in terms of altering the sentencing regime for these two prisoners convicted of treason, the goal-posts have been shifted and re-shifted.

On 6 June 2003, less than a week before legal submissions relating to the constitutional and statutory interpretation issues arising at the pre-sentence stage of these proceedings were concluded (and but eleven days ago) , the Penal Code (Penalties) (Amending) Act 2003 (hereinafter called "the Amending (Penalties) Act") came into force. The penalty provisions within the Penal Code (including, by implication, section 50) were further amended so as to reduce the potential impact of those penalties. By repealing section 33 of the Penal Code (which had given the sentencing judge a discretion to "recommend the minimum period which he considers the convicted person (receiving a life sentence) should serve") and substituting a provision under which the sentencing judge has a discretion to "fix the minimum period which the court considers the convicted person must serve", that is to say, the discretionary "fixing" of a conditional release date before which he "must" remain in prison and after which he "may" be released (the determination of what is sometimes called "the semi-custodial portion of a sentence" or "the parole period").

The effect of such an amendment is to change the imprisonment regime for a person serving a life sentence from one in which there may be "a recommendation" for release in due course (which recommendation may or may not be acted upon by the executive branch of government) to one in which a minimum period which "must" be served may be "fixed", thus providing the person serving a life sentence with a measure of certainty, albeit not absolute certainty. A partially-determinate sentence is generally regarded (and is regarded by this Court) as a less severe sentence than an indeterminate sentence.

As a result of these amendments to the Penal Code and, the question of the invalidity or invalidity of the Amending Act aside, the Parliament has established (and provided) for a range or scale of penalties for treason, which may be set out (in descending order of severity) as follows:

A sentence of death [abolished]
A sentence of mandatory life imprisonment [not possible having regard to the interpretation provisions].
A sentence of life imprisonment, without fixing a minimum period.
A sentence of life imprisonment with a lengthy minimum period.
A sentence of life imprisonment with a moderate minimum period.
A sentence of life imprisonment with a short minimum period.
A sentence of imprisonment for a term of years (lengthy).
A sentence of imprisonment for a term of years (moderate).
A sentence of imprisonment for a term of years (short).
A non-custodial form of sentence.

THE VALIDITY OR INVALIDITY OF THE AMENDING LEGISLATION - THE SEPARATION OF POWERS - THE JUDICIAL POWER

The decision I am called upon to make regarding the validity or invalidity of subsection (2) of section 2 of the Amending Act is not about arguments for and against the death penalty; it is not about the efficacy of retrospective criminal legislation; it is not about the propriety of the legislature passing ad hominem legislation.

The most important question arising for determination at this final stage of this treason case concerns the concept of the separation of powers, the judicial power of the State, and the question of whether the Parliament has usurped or interfered with the judicial power. A subsidiary question that might have arisen in a formal way concerns the concept of "equality before the law" [38(1) of the Constitution].

I repeat and emphasise that, when a judge is engaged in the sentencing process in a capital case, the judge is not concerned with arguments for or against capital punishment or its efficacy as a deterrent against serious crime. This court is, therefore, not concerned with the propriety or expediency of the law impugned. It is concerned solely with the question of whether this provision [2(2) of the Amending Act], however reasonable and expedient or otherwise, is of such a character that it conflicts with the entrenched provisions of the Constitution.

The judicial power of the State

The judicial power of the State in the Republic of the Fiji Islands is treated by the Constitution as a distinct governmental power, that is to say, distinct from the legislative power of the State [section 45 of the Constitution] and the executive authority of the State [section 85 of the Constitution]. The judicial power of the State is vested in the High Court, the Court of Appeal and the Supreme Court and in such other courts as are created by law [section 117(1) of the Constitution].

The outer limits of the judicial power of the State are set by the terms in which the original appellate and other jurisdictions of the High Court are defined [sections 119 and 120], the appellate and other jurisdictions of the Court of Appeal are defined [sections 119 and 121], and the exclusive, appellate, advisory and other jurisdictions of the Supreme Court are defined [sections 119, 122 and 123].

The separation of the judicial power

The Constitution, by its explicit terms [section 118], requires that the judicial power of the State be separated from and be exercised (by the judges) independently of the legislative and executive branches of government. The express words of section 118 aside, the arrangement of the Constitution (Chapters 6, 7 and 9 of which deal separately with the legislative power of the State, the executive authority of the State and the judicial power of the State) provides the basis for a necessary implication of separation of the judicial power. The Parliament is precluded from vesting that power in any person or agency other than the courts and from itself exercising that power or interfering with the court's exercise of that power.2

The textual implication is reinforced by the language used - "the ... power/authority .... vests/is vested in ...".

The doctrine of the separation of legislative, executive and judicial power, at least to the extent that it commits judicial power to the courts to the exclusion of the Parliament, was recognised by the Privy Council in Liyanage v R3. Their Lordships said in that case:

These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution, by which it was intended that judicial power should be shared by the executive or the legislature. The Constitution's silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to, or be shared by, the executive or the legislature.4

The noted constitutional academic, Professor Lane, has said5 that judicial power is usurped, according to Liyanage, when there is legislative interference in specific proceedings, when such interference affects pending litigation, and when the interference affects the judicial process itself such as inter alia the discretion or judgment of the judiciary or the authority or jurisdiction of the court.

The separation of powers doctrine, as it applies in South Africa, was explained in First Certification Judgment (also referred to as In re: Certification of the Constitution of the Republic of South Africa, 19966) in the following terms:

The principle of separation of powers, on the one hand, recognises the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another. No constitutional scheme can reflect a complete separation of powers; the scheme is always one of partial separation. In Justice Frankfurter's words, 'the areas are partly interacting, not wholly disjointed'... The model adopted reflects the historical circumstances of our constitutional development. We find in the Constitution checks and balances that evidence a concern for both the over-concentration of power and the requirement of an energetic and effective, yet answerable, executive. A strict separation of powers has not always been maintained; but there is nothing to suggest that the constitutional principles imposed upon the [Parliament] an obligation to adopt a particular form of strict separation, such as that found in the United States of America, France or the Netherlands.

The separation of powers doctrine, as it applies in Australia, is explained in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs.7

The separation of the judicial power has been said to be necessary inter alia for the discharge by the courts of their constitutional role as a "bulwark of the Constitution against encroachment whether by the legislature or the executive."8

The separation of the judicial power precludes any legislative interference with the exercise of the judicial power by the courts because the rights of persons must be determined by “judges of the State ... independent of the legislative and executive branches of government."9

The Parliament may, apart from the guaranteed jurisdiction conferred by the Constitution upon the courts, grant jurisdiction to or withhold jurisdiction from the courts. The Parliament may also adjust the substantive rights at issue in proceedings before a court.10 The Parliament can prescribe what evidence may or may not be used in legal proceedings and regulate the method or burden of proving facts, and this will not usurp judicial power.11

However, the Parliament cannot direct the courts as to "the manner and the outcome" of the exercise of their jurisdiction, for that would be an impermissible intrusion into the judicial power which the Constitution vests exclusively in the courts which it designates. The Parliament cannot remove or interfere with the power of Chapter 9 courts to "adjudge and punish criminal guilt".12

For example, a law which declared a named individual to be guilty of a crime and imposing a penalty on that individual (a 'Bill of Attainder' or a ‘Bill of Pains and Penalties') would be invalid because it would breach the separation of judicial power.13

Another example (of breaching the separation of judicial power) would be if the Parliament conferred on a court the power to order the preventive detention of a specified individual.14

Yet other examples of breaching the separation of the judicial power must have been in the minds of the members of the Judicial Committee of the Privy Council in Moses Hinds v R15 when Lord Diplock, in delivering the majority judgment of their Lordships, said:

In the field of punishment for criminal offences, the application of the basic principle of separation of legislative, executive and judicial powers that is implicit in a Constitution on the Westminster model makes it necessary to consider how the power to determine the length and character of a sentence which imposes restrictions on the personal liberty of the offender is distributed under these three heads of power. The power conferred upon the Parliament to make laws for the peace, order and good government ...... enables it not only to define what conduct shall constitute a criminal offence but also to prescribe the punishment to be inflicted on those persons who have been found guilty of that conduct by an independent and impartial court established by law: ... The carrying out of the punishment where it involves a deprivation of personal liberty is a function of the executive power; and, subject to any restrictions imposed by law, it lies within the power of the executive to regulate the conditions under which the punishment is carried out. In the exercise of its legislative power, Parliament in ay, if it thinks fit, prescribe or fix punishment to be inflicted upon all offenders found guilty of the defined offence - as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments up to a maximum in severity, either with or, as is more common, without a minimum, leaving it to the court by which the individual is tried to determine what punishment falling within the range prescribed by Parliament is appropriate in the particular circumstances of his case.
Thus Parliament, in the exercise of its legislative power, may make a law imposing limits upon the discretion of the judges who preside over the courts by whom offences against that law are tried to inflict on an individual offender a custodial sentence the length of which reflects the judge's own assessment of the gravity of the offender's conduct in the particular circumstances of his case. What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body [or, I would add, to the Parliament itself] whose members are not appointed [like Judges] under ... the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders ... A breach of a constitutional restriction is not excused by the good intentions with which the legislative power has been exceeded by the particular law. If consistently with the Constitution, it is permissible for the Parliament to confer the discretion to determine the length of custodial sentences for criminal offences upon a [non-judicial] body it would be equally permissible to a less well-intentioned Parliament to confer the same discretion upon [itself or] any other person or body of persons not qualified to exercise judicial powers, and in this way, without any amendment of the Constitution, to open the door to the exercise of arbitrary power by the executive in the whole field of criminal law. In this connection their Lordships would not seek to improve on what was said by [O'Dalaigh CJ in] the Supreme Court of Ireland in Deaton v Attorney-General and the Revenue Commissioners (1963) IR 170, 182-183, a case which concerned a law in which the choice of alternative penalties was left to the executive.
"There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is a statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case ... The legislature does not prescribe the penalty to be imposed in an individual citizen 's case; it states the general rule, and the application of that rule is for the courts ... The selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive..."
This was said in relation to the Constitution of the Irish Republic, which is also based upon the separation of powers. In their Lordships' view it applies with even greater force to Constitutions on the Westminster model. They would only add that under such Constitutions the legislature not only does not, but it cannot, prescribe the penalty to be imposed in an individual citizen's case: Livanage v The Queen (1967) 1 AC 259.
[The emphasis is mine.]

In my view, the use of the words emphasised by me is an important indication of how the necessary distinction is drawn between legislative and judicial power - see my conclusion later in these Reasons and the like emphasis given to the word "imposed" in the lengthy extract from the judgment of the Constitutional Court in South Africa in Dodo v State.16

Yet another example would be if the Parliament conferred on a court (retrospectively) the power to 'impose' some additional burden, obligation or penalty. If such an enactment were not invalid as infringing the right given under section 28(1)(j) of the Constitution ("not to be sentenced to a more severe punishment than was applicable when the offence was committed"), it would be inconsistent with the common law presumption against retrospectivity when a penalty is increased.17

In Bachrach Pty Limited v Queensland18 consideration was given to the circumstances in which legislation will be found to be invalid upon the ground that it involves a usurpation of or interference with judicial power or an impermissible interference with the exercise of judicial power. With regard to the circumstances in which a statute affects rights in issue in pending legislation (but which does not necessarily involve an invasion of judicial power), the High Court held that "the distinction between powers that are exclusively judicial and those that take their character from the body or tribunal on which they are conferred is important." Their Honours went on to hold that the Parliament may not legislate so as to interfere with the judicial process itself rather than with the substantive rights (and, I would add, obligations) which are at issue in the proceedings.

Does section 2(2) of the Amending Act, in so far as it applies to the two prisoners, "impose" punishment and constitute "a direction" to this court as to the manner and the outcome of the exercise of its jurisdiction, and does it "select a penalty" and "determine the severity of the punishment to be inflicted"? It certainly purports to substitute a discretionary sentence of imprisonment (with a maximum of life imprisonment) for a mandatory death sentence.

If this were the extent of the decided authorities of persuasive value, and recognising that, when interference with the judicial power is said to have occurred, judgments are, quite often, made in circumstances in which minds reasonably differ,19 I might well have been minded to conclude that subsection (2) of section 2 of the Amending Act "imposes" punishment and constitutes "a direction to the court as to the manner and the outcome of the exercise of this jurisdiction" and "selects a penalty" and "determines the severity of the punishment" to be inflicted, and, therefore, is unconstitutional on the ground that it constitutes a usurpation by the legislature of the judicial power.

But the decided authorities do not stop there. It is necessary to consider the effect of the American and Canadian and post-1996 South African authorities, and also authorities emanating from constitutional democracies like the Fiji Islands in the Region and elsewhere. In doing so, it is, I think, important to emphasise the distinction that needs to be drawn between the prescription (or selection) of a range of penalties or the determination of the severity of punishment - a legislative function, on the one hand, and the imposition (or fixing or selecting) of a sentence, on the other hand.

In the United States of America the power of the legislature to define crimes and their punishment is not considered to be in breach of the separation of powers principle and the courts will not interfere with the exercise of that power unless it has been exercised in an unconstitutional manner.20 The power that the legislature possesses "to adapt its penal laws to conditions as they may exist and punish the crimes of men according to their forms and frequency" is fully recognised.21 There is an acceptance that the separation of powers doctrine imposes on the branches of government a degree of overlapping responsibility, a duty of interdependence as well as independence the absence of which "would preclude the establishment of a nation capable of governing itself effectively."22

In Canada the power of the legislature, when used to prescribe penalties, is not considered to be in breach of the separation of powers principle. Borins Dist. Ct. J. stated what the law of Canada is in the following terms:

It is not for the Court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in prescribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits ... is properly a judicial function, the Court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases ... 23

[I pause to note that in Australia it had been held in 197024 that no violation of the separation of powers doctrine occurs when the legislature prescribes penalties even without providing a judicial discretion.]

It is in South Africa that there is an example of an open and democratic society (like the Republic of the Fiji Islands aspires to be) which permits the legislature to limit the judiciary's power to impose punishment. I refer to the striking decision (and, in my opinion, a highly persuasive authority for the Fiji Islands) of the Constitutional Court of South Africa in 2001 in Dodo v State.25

After referring to the fact that it had clearly enunciated that the separation of powers under South Africa's post-1996 Constitution "embodies a system of checks and balances designed to prevent an over-concentration of power in any one arm of government", the Constitutional Court said that the Constitution anticipates "the necessary and unavoidable intrusion of one branch" on the terrain of another, engenders interaction, but does so in a way which avoids diffusing power so completely that government is unable to take timely measures in the public interest. After giving a reminder of the cautionary and generally relevant remarks of Professor Tribe, the constitutional expert, the Court rejected the idea that the courts had "a virtually exclusive and limitless sentencing discretion." Ackermann J. said:26

"There is under our Constitution no absolute separation of powers between the judicial function, on the one hand, and the legislative and executive on the other. When the nature and process of punishment is considered in its totality, it is apparent that all three branches of the State play a functional role and must necessarily do so. No judicial punishment can take place unless the person to be punished has been convicted of an offence which either under the common law or statute carries with it a punishment. It is pre-eminently the function of the legislature to determine what conduct should be criminalised and punished. Even here the separation is not complete, because this function of the legislature is checked by the Constitution in general and by the Bill of Rights in particular, and such checks are enforced through the courts.

Both the legislature and executive share an interest in the punishment to be imposed by courts, both in regards to its nature and its severity. They have a general interest in sentencing policy, penology and the extent to which correctional institutions are used to further the various objectives of punishment. The availability and cost of prisons, as well as the views of these arms of government on custodial sentences, legitimately inform policy on alternative forms of non-custodial sentences and the legislative implementation thereof ...

The executive and legislative branches of State have a very real interest in the severity of sentences. The executive has a general obligation to ensure that law- abiding persons are protected, if needs be through the criminal laws, from persons who are bent on breaking the law. This obligation weighs particularly heavily in regard to crimes of violence against bodily integrity and increases with the severity of the crime.

In order to discharge this obligation, which is an integral part of constitutionalism, the executive and legislative branches must have the power under the Constitution to carry out these obligations. They must have the power, through legislative means, of ensuring that sufficiently severe penalties are imposed on dangerous criminals in order to protect society. The legislature's objective of ensuring greater consistency in sentencing is also a legitimate aim and the legislature must have the power to legislate in this area. The legislature's interest in penal sentences is implicitly recognised by the Constitution. Section 35(3)(n) thereof provides:

35. (3) Every accused person has ... the right –

(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing". [The counterpart of that right in the Fiji Islands is section 28(1)(j) which provides:

Every person charged with an offence has the right (j) "... not to be sentenced to a more severe punishment than was applicable when the offence was committed."]

The legislature's powers are decidedly not unlimited. Legislation is by its nature general. It cannot provide for each individually determined case. Accordingly, such power ought not, on general constitutional principles, wholly to exclude the important function and power of a court to apply and adapt a general principle to the individual case. This power must be appropriately balanced with that of the judiciary. What an appropriate balance ought to be is incapable of comprehensive abstract formulation, but must be decided as specific challenges arise. In the field of sentencing, however, it can be stated, as a matter of principle, that the legislature ought not to oblige the judiciary to impose a punishment which is wholly lacking in proportionality to the crime. This would be inimical to the rule of law and the constitutional State.

Before I apply the law to the facts of the present case and announce my conclusion as to the validity or otherwise of subsection (2) of section 2 of the Amending Act in the context of the separation of powers, I should indicate that there are a number of recent cases decided in, or on appeal from, countries to be characterised as constitutional democracies in which it has been held that the judicial power has been usurped or interfered with. I refer to Ireland27, Ceylon28, Solomon Islands29, Papua New Guinea30, Mauritius31, Australia32 and 33 and St. Christopher and Nevis.34

In my considered opinion, subsection (2) of section 2 of the Amending Act, amended by the Amending (Penalties) Act, "prescribes", albeit retrospectively, the penalty for treason and "determines the severity of the punishment" for that serious offence (a legislative function) and does not breach the separation of powers doctrine. It would, in my judgment, have been otherwise if it had truly "imposed" or "determined" or "selected" the actual sentence in a particular case (a judicial function); in that event the subsection would have been repugnant to the Constitution and, accordingly, invalid.

For all these reasons I hold that the Amending Act is not invalid upon the ground of usurpation of or interference with the judicial power of the State by Parliament.

EQUALITY BEFORE THE LAW

Section 38 is the provision in the 1997 Constitution which deals with the topic of equality. Section 38(1) provides:

"38.-(1) Every person has the right to equality before the law."

This is a provision within the Bill of Rights part of the Constitution (Chapter 4). This provision is, I think, a general requirement that laws should have a uniform operation, but it is a specific requirement that every person has the right not to be treated unequally and not to have his or her equality right contravened.

It was not argued on behalf of the Attorney-General, as an intervener, that the enactment of subsection (2) of section 2 of the Amending Act constitutes a contravention of the equality right contained in section 38(1) or infringed the Bill of Rights regarding equality, and is, on that account, invalid. Though this was an argument advanced on behalf of the prosecution, it was not, as I understand Mr Ridgway's submissions, argued that some person would be entitled to obtain constitutional relief and, if so, it was not suggested who that person was - see section 41 of the Constitution. It was argued on behalf of the prosecution that the subsection is invalid on other grounds. The Attorney General, being of the view that subsection (2) of section 2 of the Amending Act purported to abolish the mandatory death sentence and substitute a mandatory sentence of imprisonment for life, was, arguably, of the view that the substitution in that way would not constitute relevant inequality. The Human Rights Commission made no submissions on this topic.

Notwithstanding the paucity of legal submissions on this topic, I should perhaps indicate a tentative view based upon the basic principle adopted by (but differently applied) by a majority of the High Court of Australia in the seminal (but nonetheless controversial) case of Leeth v The Commonwealth.35 But first I should refer to the judgment of Mason CJ, Dawson and McHugh JJ in which their Honours said36:

"There is no general requirement contained in the Constitution (of Australia) that Commonwealth laws should have a uniform operation."
(contrast the 1997 Constitution of the Fiji Islands.)

Their Honours said also37:

It is obviously desirable that, in the sentencing of offenders, like offenders should be treated in a like manner38 but such a principle cannot be expressed in absolute terms [in the absence of an explicit constitutional guarantee].

Brennan J (as he then was) said39:

If the plaintiffs' arguments were directed against a law prescribing different maximum penalties for the same offence, there would be much force in them. The maximum penalties prescribed for offences determine the extent of the judicial power to send an offender to prison and the corresponding liability of an offender to be sent to prison. It would be offensive to the constitutional unity of the ... people ... to expose offenders against the same law .. to different maximum penalties dependent on the locality of the Court by which the offender is convicted and sentenced. It follows that the maximum penalty prescribed for a breach of the law must be the same irrespective of the locality of the Court before which the offender is tried and sentenced.

[In my judgment, the same principle would apply if the words "the locality of" last appearing were deleted and the words "the time when the sentence came to be imposed by" substituted - a temporal inequality as opposed to a geographic one.]

Deane and Toohey JJ said40:

The doctrine of legal equality is in the forefront of those doctrines. It has two distinct but related aspects. The first is the subjection of all persons to the law:
"every man, whatever be his rank or condition, is subject to the ordinary law and amenable to the jurisdiction of the ordinary tribunals."41 The second involves the underlying or inherent theoretical equality of all persons under the law and before the Courts42. The common law may discriminate between individuals by reference to relevant differences and distinctions, such as infancy or incapacity, or by reason of conduct which it prescribes, punishes or penalizes. It may have failed adequately to acknowledge or address the fact that in some circumstances, theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality. Nonetheless, and putting to one side the position of the Crown and some past anomalies, notably, discriminatory treatment of women, the essential or underlying theoretical equality of all persons under the law and before the courts is …. a fundamental and generally beneficial doctrine of the common law and a basic prescript of the administration of justice under our system of government. Conformably with its ordinary approach to fundamental principles, the Constitution does not spell out that general doctrine of legal equality in express words.

[contrast in the Fiji Islands, where the Constitution goes some way to spell it out in section 38(1)] The question arises whether it adopts it as a matter of necessary implication. In our view, several considerations combine to dictate an affirmative answer to that question.

And their Honours added43:

The doctrine of legal equality is not infringed by a law which discriminates between people on grounds which are reasonably capable of being seen as providing a rational and relevant basis for the discriminatory treatment. In one sense, almost all laws discriminate against some people since almost all laws operate to punish, penalise or advantage some, but not all, persons by reference to whether their commands are breached or observed. While such laws discriminate against those whom they punish or penalise or do not advantage, they do not infringe the doctrine of the equality of all persons under the law and before the courts. To the contrary, they assume that underlying legal equality in that they discriminate by reference to relevant differences. Again, laws which distinguish between the different needs or responsibilities of different people or d localities may necessarily be directed to some, but not all, of the people of the Commonwealth. Provided that the differentiation of and between those to whom they are addressed does not involve discrimination of a kind that infringes their inherent equality as people of the Commonwealth, such laws will not infringe tile doctrine of equality under the law and before the courts.

Gaudron J, in her forthright judgment, said44:

"All are equal before the law. And of the concept of equal justice - a concept which requires the like treatment of like persons in like circumstances, that also requires that genuine differences be treated as such - is fundamental to the judicial process."

Applying that principle to the present case and adapting those words of Gaudron J, the power purportedly conferred by subsection (2) of section 2 of the Amending Act could be said to have varied the penalty for treason in nature and in content, not according to the nature of the offence or the circumstances of its commission, but according to the time of conviction; as such, and in the ordinary course of events, the exercise of that power would involve a failure to treat like offences against the Penal Code in a like manner; this is only another way of saying that subsection (2) of section 2 is discriminatory; but, stated in these terms, it is clear that power of that kind treats people unequally; as such, its exercise is inconsistent with judicial process.

It is possible to sever subsection (2) of section 2 from the rest of the Amending Act.

But, as I have stated, no application has been made to this Court for constitutional redress. This court should not, of its own motion, grant such relief. It might be another matter as far as the Court of Appeal or the Supreme Court may he concerned, if there were to be an appeal against either or both of the sentences which this Court will impose.

The principle of equality, one of the foundations of the Constitution of the Fiji Islands, is that all persons subject to law must be treated equally unless there is a rational ground for discrimination between them. The question of the status of rationality in constitutional law (and of proportionality and reasonableness) is not, therefore, for me to determine.

For all these reasons I am not persuaded to find that the Amending Act, or subsection (2) of section 2 thereof, contravenes section 38(1) of the Constitution.

RETROSPECTIVITY

The Parliament of the Fiji Islands is not precluded from enacting retrospective legislation. Between the date when the 1997 Constitution was enacted on 25 July 1997 and the date when the Constitution (Amendment) Act 1998 (and the 1997 Constitution itself) came into force on 27 July 1998, any such retrospective legislation, if it had been enacted, would have been invalid as contravening section 46(3), which was a clear indication that any Act did not "come into operation before the date on which it (was) published in the Gazette".

By virtue of section 5 of the Constitution (Amendment) Act, which, as I have said, came into force on 27 July 1998, section 46(3) was repealed (or omitted). This meant that, as and from 27 July 1998 and notwithstanding the abhorrence felt by some towards retrospective legislation45, there was no express constitutional prohibition against the enactment of retrospective legislation.

However, some retrospective criminal laws, if they involve the usurpation by the legislature of the judicial power of the Parliament, and if they are considered to be Bills of Attainder, and if they are regarded as undermining public confidence in the integrity of the Courts, may be invalid; common law presumptions provide strong limits on retrospective legislation.

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.46

Sentencing in criminal cases is normally based on the law operating at the time of the offence, but, if a statute changes the law so as to reduce the penalty, then, subject to any ascertainable intention in unambiguous and clear language indicating otherwise, it may have retrospective effect immediately. A law mitigating the rigour of the criminal law or its penalties may be construed retrospectively.47

A Canadian academic described the application of the presumption against the retrospective operation of, statutes as "one of the most difficult problems in the process of statutory construction"48 but, in his summary of the law,49 said:

The presumption (against the retrospective operation of statutes) does not apply unless the consequences attaching to the prior event are prejudicial ones, namely, a new penalty, disability, or duty.

In Siganto v R50 in the High Court of Australia, Gleeson CJ, Gummow, Hayne and Callinan JJ did not apply the presumption against the retrospective operation of statutes and saw no difficulty in giving effect to an Act which "was intended to apply to offenders being sentenced for offences committed before the commencement of the Act."51 Their Honours stated:

Giving effect to that intention produces the result that people who had previously offended but had not yet been sentenced would be treated differently from people who had previously offended and had been sentenced. This is not relevantly inequality before the law. It is a consequence of a change in the law.

Reference should again be made to Samuels v Songaila53. In that case, King J (as he then was) said54:

Although the question does not arise in this case, I should perhaps indicate my view that the result would not necessarily be the same if the new penalty provisions operated by way of reduction of penalty. I have indicated my view above that the presumption against retrospectivity is stronger where the provisions impose (sic, prescribe or fix) some additional burden, obligation or penalty. If Parliament were to reduce a penalty it might appear that Parliament has adjudged the former penalty to be harsh or unjust and therefore intended that the harshness or injustice should not be continued even in relation to offences already committed. Similarly, where Parliament abolishes a particular type of punishment, such as capital or corporal punishment, it might be easy to find a legislative intention that the type of punishment which has been abolished should not be imposed in future, even in relation to offences committed before its abolition.

In the same case Bray CJ was not prepared to go as far as King J but he gave a hint of how he might have decided this question. His Honour said55:

I would only add that amongst the questions discussed at the Bar was whether the same effect must necessarily be given to a statute along the lines of the Act of 1976 which decreases penalties instead of increasing them. That question will have to be left until it arises. I will only say that in my view it by no means follows that it would, at least so far as the common law principle is concerned.

It was not argued by counsel for the prosecution that the Amending Act, in so far as it purported to abolish the death penalty (and, by subsection (2) of section 2, to have that amendment apply to the two prisoners) was invalid as being invalid retrospective criminal legislation. However, for the sake of completeness and to attempt to explain how it could be that Mr George Speight (convicted of treason his involvement in the abortive coup of May to July 2000) received the mandatory death sentence (subsequently commuted to life imprisonment) and the two prisoners (also convicted of treason) should be only "liable to imprisonment for life" (as that phrase is understood by the law of the Fiji Islands) for their involvement in that coup, I should continue this explanation of the law regarding retrospective criminal penalties and announce my decision in the circumstances of this case.

Because the language of the statute, which I assess as being unambiguous and clear, expressly requires a construction so as to give it retrospective effect (see subsection (2) of section 2 of the Amending Act), the common law presumption against retrospectivity has no application. This is one of those cases in which the Parliament has, in my judgment, legislated so as to affect and alter liabilities in issue in pending litigation without breaching the Constitution in this way.

For these reasons, I conclude that there is no invalidity in the enactment of subsection (2) of section 2 of the Amending Act simply because it constitutes retrospective legislation or legislation with retroactive effect.

THE DEATH PENALTY: IS IT UNCONSTITUTIONAL?

Because I have held that the Amending Act is not invalid on any of the grounds discussed above and because, in my judgment, capital punishment is now abolished for treason and all other conduct proscribed in the Penal Code, there is no need for this Court to decide whether, in the Fiji Islands, the death penalty is inconsistent with either section 22 or section 25 of the Constitution. Section 22 is the "right to life" section. It provides:

"22. Every person has the right to life. A person must not be arbitrarily deprived of life."

Section 25 is the section which deals with the right to freedom from cruel, inhumane or degrading treatment. Section 25 provides:

"25.-(1) Every person has the right to freedom from torture of any kind, whether physical, mental or emotional, and from cruel, inhumane, degrading or disproportionately severe treatment or punishment."

However, out of respect for the able submissions and arguments made and advanced by Dr. S. Shameem for the Fiji Human Rights Commission in particular, I indicate that, persuasive as the decisions of the Supreme Court of the United States of America in Furman v. Georgia56 and of the Constitutional Court of South Africa in S v Makwanyane and Anor57 are, each of those cases is, I think, distinguishable from the present. The grounds for distinguishing those cases are that the 1997 Constitution does not vest in the people an unqualified 'right to life' [generally in section 22, and implied in section 55 (8)(a) and section 115(4)]. The constitutional constraint (or reservation) is that the carrying out of the death sentence is neither arbitrary nor can it relevantly be said (in the absence of the repeal of sections 55(8)(a) and 115(4), which still have a place in the Constitution) to be cruel, inhumane and degrading punishment.

Realising that my conclusions on this topic are obiter dicta (albeit judicial dicta) and noting that I have had a considerable body of constitutional material placed before me, I indicate that, for my part, I would find myself unable to hold that the death penalty is per se unconstitutional in the Fiji Islands at this time.

I take this opportunity to say that any person interested in the constitutional law could not fail to be impressed by such judicial pronouncements as were made in the Constitutional Court of South Africa in S v Makwanyane and Anor58.

Didcott J described the leading judgment of Chaskalson P (as he then was) as an "erudite exposition" of the themes developed "from meticulous research into a mountain of material." He described the leading judgment of the President, who is now the Chief Justice, as "a profound and monumental work" with which he felt proud to associate himself59.

In endorsing what Didcott J had stated in his judgment, Kentridge AJ suggested that the decision of the Constitutional Court of South Africa in that case [like perhaps the decision of the Parliament here in the Fiji Islands to enact the Amending Act] entails "a recognition that even the worst ..... criminals are not excluded from the protections of the Constitution".60 The learned judge went on to refer to what Mr. Winston Churchill had said, when Home Secretary in England, in 1910:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State - a constant heart-searching by all charged with the duty of punishment - a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which, in the treatment of crime and criminals, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.

Madala J, in agreeing with this approach, quoted with approval the words of Marshall J in Furman v Georgia61:

The measure of a country's greatness is its ability to retain compassion in time of crisis.

Langa J, who also described the judgment of Chaskalson P as "erudite", concluded his judgment with the observation that the death penalty, as punishment, "is not reasonable on any basis; in view of the available alternative sentence of a long term of imprisonment, it is also unnecessary."

In the circumstances, I have said as much as I need on this huge topic. I steadfastly bear in mind that the questions of whether capital punishment ought to be finally (and for all offences) abolished or retained and, importantly, whether the Constitution should be amended to delete references to the death penalty are questions of policy which Members of the Parliament, as representatives of the people, should decide. But the issue is also a constitutional one to a degree, but in limited circumstances. It would be for the Appellate Courts of the Fiji Islands to grapple with the constitutional question if they are called upon to do so. I conclude this part of my Reasons by echoing, by adopting, and by adapting the words of Didcott J62, which are apt in the context of the sentencing of persons for treason if no longer relevant in the context of the constitutional penalty for treason: The Fiji islands have experienced too many coups; such insurrections and rebellions against Parliamentary democracy must stop before they make a mockery of the civilised, humane, and compassionate society to which this Nation aspires and has (repeatedly) constitutionally pledged itself; the State must set, and continue to set, the example by demonstrating the priceless value it places on the lives (and freedom) of all its subjects, even the worst. And I would add that the rule of law must continue to be upheld.

In this context reference should also be made to Chapter 2 of the Constitution, which is the Compact. Section 6 of the Constitution provides:

6. The people of the Fiji Islands recognise that, within the framework of this Constitution and the other laws of the State, the conduct of government is based on the following principles:
...........
...........
(b) the rights of all individuals, communities and groups are fully respected;
...........
...........
(e) as citizens, the members of all communities enjoy equal rights, including the right to make their permanent homes in the Fiji Islands;
...........
...........
(i) to the extent that the interests of different communities are seen to conflict, all the interested parties negotiate in good faith in an endeavour to reach agreement;
...........
...........
(k) affirmative action and social justice programs to secure effective equality of access to opportunities, amenities or services for the Fijian and Rotuman people, as well as for other communities, for women as well as men, and for all disadvantaged citizens or groups, are based on an allocation of resources broadly acceptable to all communities.
............

Has not the Parliament, in enacting the Amending Act in exercise of the legislative power of the State, had regard to those principles? And what of this exercise of the judicial power by this Court?

GENERAL SENTENCING PRINCIPLES

It is well-accepted by the law that the ultimate object of the criminal law is the protection of the community from crime, and this is one of the main purposes of punishment. That is the sentencing court's first concern but, subject to that, the Court should lean towards mercy and impose only the minimum sentence necessary to achieve that result. Matters personal to the offender must sometimes (and this is such a time) be subsidiary to the need to protect the public.

To determine the appropriate punishment the Court considers the factors of deterrence (specific and general), retribution, rehabilitation, and, in some instances (but this is not one), incapacitation (sometimes called “protection"). There is, I think, a place also for consideration of the notion of restorative justice [Chapter 5 of the Constitution (Social Justice) and Chapter 2 (Compact)].

In some cases (and this is one) deterrence is the most important factor in protecting the community.

The principle of retribution requires the imposition of a just or adequate punishment and the denunciation of the crime. The sentence must accord with the general moral sense of the community. The notion of retribution ensures proportionality in sentencing.63

Rehabilitation is the renunciation of wrong-doing by an offender and the re-establishment (and restoration) of him or her as a law-abiding citizen. There is a public interest in the rehabilitation of the offender; reformation is a means of protecting the community. There are, however, some cases (and this is one) that are so serious that rehabilitation must be subsidiary to deterrence and retribution. In serious cases (and this is one) rehabilitation can be given more weight in the fixing (if appropriate to do so) of the minimum term which must be served.64

The Court should strive for consistency in punishment and eliminate, as far as may be possible, unjustified discrepancy in sentencing. To this end, the Court may consider other sentences imposed for similar offences. In the Fiji Islands at this time (indeed, in Australasia and the South Pacific Region) there is but one sentence for a similar offence, viz. that imposed upon Mr George Speight on 18 February 2002. However, as will appear, the Court is not required to eliminate disparities which arise because of changes to legislation. Nor should the Court contemplate imposing a greater sentence than is legitimate (and justified) out of a desire to achieve parity.65

In my view, the exercise of comparing the case of Mr George Speight in a quest for parity would be an inappropriate legal exercise for me to undertake, as well as yielding no benefit. Mr George Speight was subject to a different sentencing regime, one that the Parliament has, in the exercise of the legislative power of the State, declared to be obsolete. It would therefore be quite wrong for me to impose a directly comparable sentence even though the two prisoners who are to be sentenced may have characteristics similar to Mr George Speight (they were joint offenders and part of "the group" that masterminded and tried to carry the coup through to completion) and did, in fact, commit the same crime at the same time.

I am duty bound to fix a sentence for each offender that is within the range appropriate to the objective gravity of the particular offence committed by each offender.

One important factor which I must have regard to, and which is divorced from the individual cases of the two prisoners themselves, is the effect of the passage of time and the consequential effects of the recent legislative changes (since March 2002 that have occurred) upon the judicial determination of appropriate sentencing tariffs.

As was stated in R v Barnett66 in the Supreme Court of Victoria by Coldrey J:

What the courts may regard as constituting the appropriate sentence for any criminal offence will, at any period of (sic - point in) time, be influenced by the intent of Parliament expressed for example, in the enactment of increased [I would add, "or decreased"] penalties, and by the judicial perception of community concern at the prevalence of certain offences and the seriousness with which the community [I would add, "as represented by its Members of Parliament"] regards such offences. These factors must necessarily operate within the context of general sentencing principles which reflect other community expectations including rehabilitation [I would add "and notions of restorative justice or reconciliation"].

Caution needs to be exercised, therefore, in comparing the cases of these two prisoners with the case of Mr George Speight heard and determined before the legislative amendments that have been referred to in these Reasons were made.

So it is that, whilst this Court is not required to eliminate (indeed the Parliament has precluded it from eliminating) a disparity which necessarily arises because of changes to legislation and whilst there is no rule that precisely the same sentence must be passed on co-offenders, the court can (and should) take, sparingly, such steps as may lawfully be taken to ensure that there is no justifiable sense of grievance arising from disparate sentences.67

A court should not impose a manifestly excessive sentence in order to achieve parity; a court is not bound to impose an inadequate sentence in order to achieve parity unless justice demands such a course.

In so far as there necessarily will arise some disparity in the sentences to be imposed today with that received by Mr George Speight when he was sentenced (and had his sentence commuted), I have attempted, as my legal duty requires me to do, to give reasons for that disparity.68

The initial consideration in determination of the appropriate sentence is the maximum penalty prescribed by the legislature (in this case, a mandatory sentence of life imprisonment, but a sentence of life imprisonment subject to a discretion to "fix" the term the offender "must" serve). That this should be the initial consideration is because the maximum penalty manifests the policy of the legislature (albeit not refined and prescribed until 11 days ago - 6 June 2003). Prima facie the maximum penalty indicates the seriousness of the offence.

The maximum penalty (if not a mandatory one) prescribes the limits of the court's discretion as to the sentence, and it also provides the appropriate penalty for the worst case of its type. However, it is not reserved only for the worst imaginable example of the offence committed by the particular offender.69 The maximum penalty may be appropriate in a variety of cases.70 The sentencing court must consider where the facts lie in the spectrum of the conduct covered by the section having regard to the maximum penalty and the possible range of conduct covered.

In respect of most offences there is a normal range of sentences imposed by the court, known as "the tariff”. Sentences should fall within this range unless there are exceptional circumstances. I am satisfied that there are exceptional circumstances here. In the case of offences of treason committed in the Fiji Islands (and, I think, elsewhere in the South Pacific Region) there is no tariff at all, because the non-mandatory sentence tasks, that have emerged from the treason cases in the Fiji Islands following the unsuccessful coup in May to July 2000, are truly unique and are part of the lonely (and somewhat invidious) duty that falls to me to discharge in the case of these two offenders.

As an examination of the history of the crime of treason in Westminster systems of justice throughout the Commonwealth shows, the "legislative" tariff is the mandatory sentence of death, which is no longer (and since quite recently) part of the law of the Fiji Islands.

Of course , the court is required to take into account such matters as the circumstances of the offence, the results intended, the actual harm caused, the forcible and potential consequences of the offence, whether the offence was planned and deliberately committed (rather than impulsively), the role played by each offender (if there is more than one), the extent of the participation of the offender, the motive, the use or threat of violence, the number of victims affected, the extent of the victimisation caused, the breach (if any) of a position of trust arising by reason of a position held by the offender and his standing in the community or the like, the use and/or threatened use of weapons to carry out the offence, the level of fear and anxiety created, and the problems caused by the conduct proscribed by (and characterised as) the offence in question.

Of course, matters personal to the offender must be taken into account, especially in the fixing (if considered appropriate) of a period which an offender sentenced to imprisonment (life or otherwise) must serve. I refer to such matters as age, character, criminal antecedence (if any), family circumstances, work history, public and community service, the offender's nationality and citizenship, the existence or absence of customary beliefs impacting upon any group to which the offender belongs and the impact (if any) thereof upon the offender's conduct, health, hardship to the offender and his dependents, remorse (if any), cooperation with the prosecuting authorities (if any), and the like.

The weight to be given to some of these factors, such as good character, will depend on the nature of the offence, and it can (as here) have less significance in the case of some types of offence (such as the crime of treason).

A FURTHER OBSERVATION REGARDING SENTENCING

For centuries courts have been called upon to play their part in attempting to subdue (control or reduce) crime, and they have accordingly developed, and from day to day administer, a system of criminal justice. As was observed in the case of R v Kear71 Wells J said:

Courts have achieved much in the struggle to suppress crime and will continue to do so. But they have their limitations. They cannot be all things to all men. In the nature of things they cannot, like ministers of religion, undertake the salvation of souls; or, like the doctor or psychiatrist, work directly to cure an offender's body or to restore him or her to mental health. They cannot make a person good by judicial order, any more than Parliament can make men and women loving and charitable by statute. They cannot wholly undo the harm and suffering caused to the victims of crime or wholly remove ... indignation and resentment ...

So it is that, in deciding what to do with persons convicted of treason, especially when there is no precedent anywhere in Australasia or the South Pacific Region, courts must be guided by principles whose application will both reduce the prospect of a repetition of this criminality and, at the same time, will retain the respect and trust of that community upon which, in the final analysis, the authority of the courts depends. Courts, moreover, are bound by the law of our State. If, for example, Parliament lays down maximum penalties for specific offences or even varies the maximum penalties from time to time, we must give effect to the expressed intention of Parliament even if, within ourselves, we hold the view that Parliament has either been too severe or not severe enough, or has chosen to grapple with the problem created by the crime thus penalised in a wholly inappropriate way. Some commentators seem to be of the misconception that judges can fix penalties at will. We have many discretions, but we cannot pass beyond the limits prescribed for us, expressly or by necessary implication, by an Act of Parliament or even an Act amended and re-amended by subsequent legislation.

As it seems to me, judges, as in many other spheres of their responsibility, are constrained, in some measure, to be pragmatic. We must, of course, abide by the law. But, within the limits and discretions laid down for us by law, we must use such wisdom, judicial and otherwise, as we have acquired in life generally, and in the law, in particular, and derive such assistance as we can from the work, the judgments, and the remarks of other judges, from conferences and conference papers, and from published works of authority and learning.

But as Wells J said72:

The principal question which a judge must ... pose for himself is: "What should be the purpose or purposes of any order that I make, having regard to all the circumstances of the case?"

In the span of centuries during which judges have been sentencing, the possible purposes that have, again and again, presented themselves to judicial minds, and that jostle one another in their endeavours to gain paramountcy are (1) to deter; (2) to prevent; (3) to reform, or, in modern, parlance, to rehabilitate; (4) to exact retribution .... The purpose of deterring the offender and any others who may be disposed to commit similar offences must plainly weigh heavily in the deliberations of a judge who is to impose a sentence for a serious crime."

AN INVIDIOUS POSITION

In a real sense the amendments of the Penal Code had the effect of putting the High Court in an invidious position. In the light of the enactment of subsection (2) of section 2 of the Amending Act in particular, followed by the recent amendment to be found in the Amending (Penalties) Act, this court, in upholding the validity of the legislation or declaring it to be invalid, as the case may be, may be seen either as doing the bidding of the executive branch of government or as precipitating a rift between the judiciary and the legislature. Either way, that would be a mis-assessment of the position, an erroneous conclusion to draw, and far from the truth of the matter.

The constitutional validity of an Act of Parliament cannot (and does not) depend upon how judges of the High Court are seen to be discharging the task that their duty imposes upon them. The Act is either valid or invalid when it comes into force. Nothing that a judge of the High Court does after its enactment can change the status of the Act as a valid or invalid piece of legislation. If, as a result of the legislative changes that have occurred since 18 February 2002, public confidence in the impartial administration of the judicial function of the High Court is weakened, then the responsibility for that state of affairs must rest where it belongs, that is to say with those who moved the Parliament to exercise the legislative power of the State in this manner and at these times.

SOME FURTHER OBSERVATIONS REGARDING THE SUBMISSIONS OF COUNSEL

In support of this application made by counsel for the prosecution, an extract from Hansard for 19 February 2000 was tendered (exhibit PS1) and the explanatory notes which accompanied the Penal Code (Amendment) Bill when it was before Parliament (exhibit PS2) were tendered. As the meaning of the wording of the Amending Act [ also the Amending (Penalties) Act] is clear and unambiguous, I have not had need to consider, first, whether I should, as a matter of law, use either exhibit as an aid to statutory interpretation and, secondly, if so, how I should do so.

Both the affidavit and the sworn evidence of Acting Superintendent Waisea Tabakau comprised credible and reliable evidence, but, in the end, they did not lead me to conclude that the Amending Act was, in its true effect, ad hominem legislation and, on that account, invalid. I have concluded that the legislation that is set out in the Amending Act, whilst affecting the two prisoners (and them only), has not been shown to have been directed only at them. The primary intention of the legislature, as revealed by a reading of the Amending Act itself, was to abolish the death penalty (in the Code) for treason, invasion and genocide, the last remaining crimes subject to the death penalty, and retrospectively in relation to any persons (who happened, in the event, to be the two prisoners and no others) who were the subject of proceedings that were "pending".

With all due respect, I thought that the prosecution's argument to the effect that sub-section (2) of the Amending Act was somehow "void for uncertainty" was misconceived as a matter of constitutional law; in any event, I regard the wording as clear and unambiguous and far from uncertain. Interesting as the account of the history of the pre-1997 Constitution of the Fiji Islands was, it should not, in the circumstances, be used as an aid to the interpretation of the 1997 Constitution.

As my Reasons in relation to both the separation of powers issue and the judicial power issue reveal, I was persuaded, in the end, by Ms. Baswaiya's submission to the effect that the doctrine of separation of powers in Fiji is not 'a strict segregation of powers'. I found her submissions on that topic to be persuasive.

Ms. Baswaiya, consistent with her duty as an advocate, cited (and relied upon) two single judge decisions of this Court in support of the proposition (with which I respectfully agree) that the Court should be reluctant to, and hesitate long before deciding to, question the purported exercise by the Parliament of the legislative power of the State, whether upon the ground of legislative interference with the judicial power or some other ground. She referred to a decision of the former Chief Justice of Fiji, Tuivaga CJ in Anand Babla and Devakar Prasad v Attorney-General73 where His Lordship said:

I am satisfied both in principle and by authority that the same legal relationship applies in Fiji between the Courts and Parliament: it is important that these two most revered institutions in the land shall recognize and respect each other's jurisdiction. This is necessary to ensure the proper discharge of their respective constitutional responsibilities. It is not a mere matter of comity but one of well- established law and custom.

In a later decision of Shameem J, in State v Audie Pickering74, Her Ladyship explained the rationale of the deference of the judiciary, and did so with her usual clarity of expression.

Neither of these two Judges of this Court, one the former Chief Justice, denied that the High Court, as the guardian of the Constitution and within the context of this sovereign democratic State of the Fiji Islands which is adherent to the rule of law, would not, when the circumstances warranted it, declare invalid legislation to be so.

Lord Woolf M.R., in some extra-judicial remarks published in a law journal, put the matter clearly in the following words:

Our parliamentary democracy is based on the rule of law. One of the twin principles upon which the rule of law depends is the supremacy of Parliament in its legislative capacity. The other principle is that the Courts are the final arbiters as to the interpretation and application of the law. As both Parliament and the Courts derive their authority from the rule of law, so both are subject to it and cannot act in a manner which involves its repudiation.

If Parliament did the unthinkable, then I would say that the Courts would also be required to act ..................... Some judges might choose to do so by saying that it was an irrefutable presumption that Parliament would never intend such a result.

I myself would consider that there were advantages in making it clear that, ultimately, there are even limits on the supremacy of Parliament which it is the Court's inalienable responsibility to identify and uphold .............. These are no more than are necessary to enable the rule of law to be preserved.

Lord Cooke of Thorndon (then Sir Robin Cooke), the former President of the Court of Appeal in New Zealand, has said76:

The modern common law should be seen to have a free and democratic society as its basic tenet, and, for that reason, to be built on two complementary and lawfully unalterable principles: the operation of a democratic legislature and the operation of independent courts .......... The concept of a free democracy must carry with it some limitations on legislative power ......... Working out truly fundamental rights and duties is ultimately an inescapable judicial responsibility.

Perhaps these two distinguished Law Lords had at the back of their minds Coke's dictum to the effect that, if the occasion arose, a judge would do what a judge should do.

In the light of sections 60 and 60A of the Interpretation Act and section 28(2) of the Penal Code, there is simply no substance in the submission on this topic (made on behalf of the Attorney-General and made on behalf of the prosecution) that the phase "liable to imprisonment for life" is to be read as meaning mandatory life imprisonment. I am satisfied that this Court is not obliged to impose a mandatory sentence of life imprisonment. It is, accordingly, not necessary to discuss any of the decided cases (on both sides) as to the meaning of the words "liable to imprisonment for ...".

In so far as counsel for the prisoner Timoci Silatolu argued that the proceedings were not "pending" at the commencement of the Amending Act, I am simply not persuaded. Both prisoners had been charged on information with treason and proceedings in relation to those charges, albeit amended from time to time, were “pending”.

For all these reasons this Court holds that the Amending Act, as further amended, is not invalid.
(Andrew Wilson)
JUDGE

27 June, 2003

ENDNOTES:

1. Ong Au Chuan v Public Prosecutor (1981) AC 648 (Privy Council) at 674.
2 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (High Court of Australia) (1992-93) 176 CLR 1 at 36
3 Lyanage v R (1967) 1 AC 259 (Privy Council)
4 Id 287-289
5 The Australian Constitution 2nd ed. (1977), 484
6 First Certification Judgment 1996 (4) SA 744 (Constitutional Court of South Africa) at para 112
7 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 (High Court of Australia) per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ at 10-12 and per Kirby J at 39-40
8 Attorney General (Cth) v R (Boilermaker's Case) (Privy Council) (1957) 95 CLR 529 at 540-541
9 R v Quinn: ex parte Consolidated Foods Corp (High Court of Australia) (1977)138 CLR 1 per Jacobs J at 11
10 Australian Building Construction Employees' and Builders' Labourers' Federation v Commonwealth (High Court of Australia) (1986) 161 CLR 88 at 96-97
11 Nicholas v R (High Court of Australia) (1998) 193 CLR 173
12 Nicholas v R supra per Brennan CJ at 185-188, per McHugh J at 344-346; per Gummow J at 230-233; per Hayne J at 278-279; and see the dissenting judgment of Kirby J at 254-267; Chu Kheng Lim's case supra per Brennan, Deane and Toohey JJ at 27 and 36-37; and Bachrach Pty Ltd v The State of Queensland (1998) 195 CLR 547 (High Court of Australia) per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ at 562-563
13 Kariapper v Wijesinha (Privy Council) (1968) AC 717 at 734; Polyukhovich v Commonwealth (War Crimes Case) (High Court of Australia) (1991) 172 CLR 501 per Mason CJ at 539-540; per Dawson J at 648; per McHugh J at 721 - see also Deane J at 606-614, 623-626, 631-632; Gaudron J at 708; and Toohey J at 689.
14 Kable (1996)189 CLR 51 (High Court of Australia) per McHugh J at 115-119, 121-124 and per Gummow J at 126-127, 144
15 Moses Hinds v R (1977) AC 195 (Privy Council) at 225-227
16 Dodo v State 2001 (3) SA 382 (Constitutional Court of South Africa)
17 Samuels v Songaila (1977) 16 SASR 397 (Supreme Court of South Australia) per Bray CJ at 400, 403-404 and King J (as he then was) at 420-421, where his Honour said:
"Although the question does not arise in this case, I should perhaps indicate my view that the result would not necessarily be the same if the new penalty provisions operated by way of reduction of penalty. I have indicated my view above that the presumption against retrospectivity is stronger where the provisions impose (sic, prescribe or fix) some additional burden, obligation or penalty. If Parliament were to reduce a penalty, it might appear that Parliament had adjudged the former penalty to be harsh or unjust and therefore intended that the harshness or injustice should not be continued even in relation to offences already committed. Similarly, where Parliament abolishes a particular type of punishment, such as capital or corporal punishment, it might be easy to find a legislative intention that the type of punishment which has been abolished should not be imposed in future, even in relation to offences committed before its abolition."
18 Bachrach Pty Limited v Queensland (1998) 195 CLR 547 (High Court of Australia) per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ at 563
19 Nicholas v R supra per Kirby J at 256
20 Weems v United States (1910) 217 US 349 at 378
21 Id 379
22 Mistretta v United States (1989) 488 US 361 at 381; Buckley v Valeo (1976) 424 US 1; see also Loving v United States (1996) 517 US 748
23 R v Guiller (1985) 43 CR (3d) 226 (Ont.Dist. Ct) at 238, adopted by the Supreme Court of Canada in R v Smith (1987) 40 DLR (4th) 435 and other cases including, most recently, R v Latimer (2001) 193 DLR (4th) 577 at 605-606.
24 Palling v Cortield (High Court of Australia) (1970) 123 CLR 52 at 58-59 where Barwick CJ said:
"It is beyond question that the Parliament can prescribe such penalty as it thinks fit for the offences which it creates. It may make the penalty absolute in the sense that there is but one penalty which the court is empowered to impose and, in my opinion, it may lay an unqualified duty on the court to impose that penalty. The exercise of the judicial function is the act of imposing the penalty consequent upon conviction of the offence which is essentially a judicial act. If the statute nominates the penalty and imposes on the court a duty to impose it, no judicial power or function is invaded: nor, in my opinion, is there any judicial power or discretion not to carry out the terms of the statute. Ordinarily the court with the duty of imposing punishment has a discretion as to the extent of the punishment to be imposed; and sometimes a discretion whether any punishment at all should be imposed. It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime. But whether or not such a discretion shall be given to the court in relation to a statutory offence is for the decision of the Parliament"
25 Dodo v State 2001 (3) SA 332 per Ackermann J, with whom Chaskalson P (as he then was), Goldstone, Kriegler, Madala, Mokgoro, Ngcobo, Sachs and Jacoob JJ and Madlanga and Somyalo A JJ concurred.
26 Id 397 - 398
27 Deaton v A-G and Revenue Comrs (Supreme Court of the Republic of Ireland) (1963) IR 170
28 Livanage v R (Privy Council) (1967) AC 259
29 Kenilorea v Attorney-General (Court of Appeal of the Solomon Islands) (1986) LRC (Const) 126
30 Supreme Court Reference No. 1A of 1981 (Supreme Court of Papua New Guinea) (1982) PNGLR 122
31 Ali v R; Rassool v R (Privy Council) (1992) LRC (Const) 401
32 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (High Court of Australia) (1992-1993)176 CLR 1
33 Kable v DPP (NSW) (High Court of Australia) (1996) 189 CLR 51
34 Browne v R (Privy Council) (1999) 3 LRC 440
35 Leeth v The Commonwealth (1991-1992) 174 CLR 455 (High Court of Australia) per Brennan J (as he then was), Deane, Toohey and Gaudron JJ.
36 Id 467
37 Id 470
38 Lowe v R (1984) 154 CLR 606 per Mason J at 610-611.
39 Leeth v The Commonwealth supra at 475
40 Id 485-486
41 Dicey, Introduction to the Study of the Law of the Constitution 10th ed. (1959), p.193
42 See, e.g., Holdsworth, A History of English Law 1938, vol. 10, p.649
43 Leeth v The Commonwealth supra at 488
44 Id 502
45 Popple J, "The Right to Protection from Retroactive Criminal Law" (1989) 13 Crim LJ 251 and Palmer & Sampford "Retrospective Legislation in Australia : looking back to the 1980s" (1994) 22 FL Rev 217; see also Helen Roberts "Retrospective Criminal Laws and the Separation of Judicial Power" (1997) PL Rev 170
46 Maxwell v Murphy (1957) 96 CLR 261 (High Court of Australia) per Dixon CJ at 267, applied in Rodway v R (1989-1990) 169 CLR 515 (High Court of Australia).
47 Samuels v Songaila (1977) 16 SASR 397 (Supreme Court of South Australia).
48 Elmer A. Driedger, "Statutes: Retroactive Retrospective Reflections" (1978) Canadian Bar Rev 264
49 Id 276
50 Siganto v R (1998) 194 CLR 656 (High Court of Australia)
51 Id 662
52 Id 666
53 Samuels v Songaila 16 SASR 397 (Supreme Court of South Australia)
54 Id 420
55 Id 403
56 Furman v Georgia (1972) 408 US 238
57 S v Makwanyane and Anor1995 (3) SA 391
58 Id 391 and following
59 Id 467
60 Id 475
61 Furman v Georgia (1972) 408 US 238 at 371
62 S v Makwanyane and Anor 1995 (3) SA 391 at 469
63 Veen v R (2) (1988) 164 CLR 465 (High Court of Australia) at 473
64 R v Houston (1982) 8 A Crim R 392 at 399; R v Jenkins (1986) 20 A Crim R 56 at 58; R v Lian (1980) 47 A Crim R 444 at 449; and R v Moffitt (1990) 49 A Crim R 20.
65 Dimozantos v R (1993) 116 ALR 411 at 415
66 R v Barnett (1993) 70 A CrimR 469 at 475
67 Lowe v R (1984) 154 CLR 606 (High Court of Australia) at 610, 612, 617 and 623
68 Id 622
69 Veen v R (No. 2) (1988) 164 CLR 465 (High Court of Australia) at 478.
70 R v Dumas (1987) VR 65 at 71.
71 R v Kear (1978) 2 Crim LJ 40
72 Id 42
73 Anand Babla and Devakar Prasad v Attorney-General HBC1689.1998, unreported decision delivered on 18/08/98
74 State v Audie Pickering HAM0007.2001, unreported decision delivered on 30/07/01
75 Lord Woolf, 'Public-English Style' (1995) PL 57 at 68-69
76 Sir Robin Cooke 'Fundamentals' (1988) NZLJ 158 at 160; see also New Zealand Drivers' Association (1982) 1 NZLR 374; and Mangawaro Enterprises Ltd. v Attorney-General (1994) 2 NZLR 451 per Gallen J at 458.

--------------------------------------------

HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC0011 of 2001

BETWEEN

THE STATE
Prosecution

AND

TIMOCI SILATOLU
First Prisoner

and

JOSEFA NATA
Second Prisoner

Counsel:

Mr P Ridgway and Mr W Kurisaqila
Mr S Valenitabua for the First Prisoner
Ms M Waqavonovono and Mr A Singh for the Second Prisoner

SENTENCING REMARKS OF THE HONOURABLE MR JUSTICE WILSON WHEN SENTENCING ON FRIDAY, 27 JUNE 2003

Date of Sentencing: 27 June 2003

SENTENCING REMARKS

Timoci Silatolu and Josefa Nata, each of you has been found guilty and has been convicted of treason, an offence which, at the time you committed this crime, was regarded as (and indeed was) a capital crime, one of the most serious crimes any person could commit. That crime is now punishable by a sentence of up to an indeterminate sentence of life imprisonment, that is to say, a sentence of up to life imprisonment without the fixing of a period of imprisonment that must be served.

As I explained to the assessors (on 17 March 2003) during my summing-up at the end of your trial, it is the law of the Fiji Islands that any person (in Fiji) who is proven to have intended to “levy war” against the State of the Republic of the Fiji Islands or its government, and who is proven to have done something, by any overt act or acts, such as planning (or plotting) to overthrow, by actual force or threat of force, the Parliament and the Government of the day; the taking and detaining (as hostages) of senior parliamentarians; involvement in an armed insurrection; and the like; commits the offence termed “treason” in Fiji.

You were each proven to have committed that crime. Both of you, together with George Speight and other persons, between 19 May 2000 and 27 July 2000 at Suva and at other places, did commit treason against the Republic of the Fiji Islands and the lawful government thereof. It was a joint enterprise that you were each involved in. There was a common intention held by both of you (and by George Speight) to attempt to achieve an unlawful purpose in conjunction with one another, viz. a coup involving a sudden attempted overthrow of the government by force. Whilst neither of you was the ring-leader and “voluble, visible and vocal front-man” (to use Mr Ridgway’s words to describe George Speight), you were each heavily involved as major participants. Timoci Silatolu, for reasons which I will explain later, I am satisfied that you were more a major participant than Josefa Nata, but, in terms of culpability, little separates each of you from George Speight.

	You were both involved in the attempted coup at the planning stage, at the stage of final preparations, at the stage when events were co-ordinated, and at the stage when a rebel government was established (and “Ministers” were sworn in), and at the stage when decisions were made and implemented, all designed to achieve the objectives of the coup.

Timoci Silatolu, you were sworn in as the “Prime Minister” shortly after the storming of the Parliament. You “addressed the Nation”. You forced or persuaded (successfully) some members of the overtaken government to resign; you failed to persuade others.

Aggravating factors in your case, Timoci Silatolu, are that you were a Member of Parliament and a Member of the Coalition Government at the time of this coup. You had, on 14 June 1999, sworn an oath of allegiance as a Member of the House of Representatives “to the People and the Republic of the Fiji Islands according to law” – exhibit P48 – You broke that promise and you were in breach of trust. Also you performed the role of the “link-man” (or the person who gave “the green light” for the coup to happen); you left the Parliamentary Chamber when everything appeared to be in readiness and you made a phone call on your mobile phone to signal to George Speight and his armed and partly-disguised hench-men that the time was right for the storming of the Parliamentary Chamber. Your conduct involved not only a breach of trust of significant proportions but also a betrayal of your Prime Minister, the Government of which you were a member, and the very Parliament itself.

Your participation in the events which followed the storming of the Parliament can only be described as deliberate, ongoing, and determined. You were a member of “the George Speight Group” and you were “up to your neck” in the steps that were taken (unsuccessful in the end) to achieve the aims of the coup and to establish a new and a differently-constituted civilian government for Fiji.

Josefa Nata, you were “the Secretary to Cabinet” and the “media man” for the rebel government. It was not a case of you being just opportunistic and joining in on something started by others. Whilst you were not present when weapons were shifted on the night before the attempted coup started and whilst you were not at Parliament House or involved in the planning in detail of the armed assault of (and take-over which took place in) the Parliamentary Chamber, you performed an important role “behind the scenes”, both before the storming of the Parliament and while the hostages were being detained, for nearly two months. You were indeed very much a member of “the Speight Group” and you were culpable. There was no direct betrayal of the Prime Minister and the Government by you, as was the case with Timoci Silatolu. The documentary evidence that was located at your residence and the mobile phone evidence (as well as other evidence established the fact that you, along with Timoci Silatolu, were an active participant and a key player.

I accept the submissions of counsel for the prosecution, Mr Ridgway, regarding the seriousness of this crime of treason.

The documents that were located by the police and which were described at your trial as “the tools in trade of the traitor”, as well as the public statements made by each of you to and over the media (indeed all the circumstantial evidence relied upon by the Prosecution, which I accepted and as no doubt did the assessors) reveal the extent of your determination and the seriousness of the path you were each taking.

You were both pursuing a cause passionately; you were “pushing an agenda of indigenous rights” (your words, Josefa Nata), but it was a cause which was aimed at the very integrity of the State itself and it was calculated (likely) to damage the very core of the Nation’s aspirations as a sovereign democratic State adhering to the rule of law and the upholding of human rights. Your conduct was destructive of the rule of law itself; it cannot be justified upon any legitimate ground. It goes to your credit, Josefa Nata, that yesterday, in this Court-room, you did not seek to argue with those propositions just articulated by me.

The victims of your wrong-doing were the people of the Fiji Islands themselves, for many in an individual personal sense and, for the rest, in a communal sense. The extent of the total damage suffered and victimisation caused would be hard to calculate. It is difficult to imagine anything, save a bloody civil war and total and lasting anarchy, that could have harmed your country more. The consequences in terms of personal suffering, loss and damage, to say nothing of the damage to your country’s image both here and abroad, were many and substantial.

Whilst circumstances of aggravation exist, there were, I think, no circumstances of mitigation; at any rate, none has been pointed to by counsel on your behalf, save and except for the suggestion made by you, Josefa Nata, that your judgment was clouded by a misguided desire to pursue a cause.

In no sense do I punish you more severely because you pleaded not guilty to this charge and contested the charge. It was your right (your “human right under the Constitution”) to plead not guilty. That having been said, I cannot, for any plea of guilty and for genuine remorse and cooperation with (or assistance to) the authorities, give you the credit of as much as a third off your sentence (if a term of years) or off a “fixed” term which “must” be served, in the case of either an actual sentence of imprisonment (for a term of years) or a life sentence.

As has already been stated, deterrence (individual and general) and retribution (to a degree) need emphasis here. Rehabilitation is not overlooked. That notion (and restorative justice and reconciliation) can be (and are) taken account of in fixing the period that must be served.

Timoci Silatolu you are a man of mature years. You are a married man with four children. You are a former employee of Telecom Fiji and a service engineer. You were a Member of Parliament from 1999 till the time of and following the coup. You have no previous convictions, and I accept that you are a man of previous good character. You are (or were at the time) a Ratu. I accept that you have made some (but not much) progress towards achieving your rehabilitation, thanks to a programme run by Prison Fellowship.

Josefa Nata you are 45 years of age. You are a divorcee and are currently single. You have three children – 2 daughters (aged 20 and 18), who are studying in the United States of America, and a 3 year old son who is raised by your aging mother in Lau. Although you have one previous conviction for an un-related offence, I treat you as if you are of previous good character. You had a good education, and were for many years a journalist. You specialised in political journalism and were well-known.

The fact that this is (or is to be treated as) an offence committed by a first offender does not carry much weight. The gravity of this crime almost entirely eliminates from consideration, in each case, the factor of good character.

I have listened to and taken account of many of the submissions made on your behalf by your respective counsel.

Josefa Nata, your expression of regret, as well as your apology to the people “at the 11th hour”, so to speak, before sentencing, carries very little weight; it does carry some. You deserve some (but not much) credit for the expression of regret for harm and shame caused to your parents (one of whom is now deceased) and to the people. You say that you were misguided. I could show you more leniency if I felt convinced (on the balance of probabilities) that you truly regret your involvement in this extremely serious crime because you now truly see it and understand its wrongfulness. I am not persuaded that “the healing process” (a phrase used by Mr Singh) has advanced very far in the case of either of you. The case of R v Fernando has no application here. The same applies to the sentence received by Mr Viliame Savu.

I must (and do) take into account the period served by each of you in custody up until the date when you will receive your respective sentences. Each of you has been in custody for nearly three years until this time. That is equivalent to a fixed sentence already served of something in excess of four and a half years, allowing for good behaviour.

The appropriate sentence for you, Timoci Silatolu, is a sentence of life imprisonment with a “fixed term” that “must” be served of 12 years imprisonment.

The appropriate sentence for you Josefa Nata is a sentence of life imprisonment with a “fixed” term that “must” be served of 10 years imprisonment.

It would be inappropriate, in my judgment, for either of you, under the current sentencing regime laid down by Parliament, to receive anything less than a life sentence, such as, for example, a long sentence of imprisonment (fixed); certainly a moderate sentence or a short sentence would be totally inappropriate.

By the application of sentencing principles, it would also be inappropriate and harsh, in my judgment, for either of you, under the current sentencing regime laid down by Parliament, to receive an indeterminate life sentence (that is to say a life sentence without the “fixing of a period that must be served”) or even to receive a life sentence with the “fixing” of an effective period of imprisonment that “must” be served of more than 10 years; to so order would involve this court doing something that is undesirable, namely, being out of step with sentencing levels and practices for very serious crimes in the South Pacific Region.

I have considered whether a sentence of imprisonment for a term of years (say 15 years for Timoci Silatolu) would be appropriate. Such a sentence would hardly have the appearance of being excessive in the circumstances. Such a sentence, if imposed, would result in you, Timoci Silatolu, still having to serve a further 10 years (or thereabouts) from today taking into account time spent in custody and expected remissions for good conduct and the like. A sentence of imprisonment for any less than 15 years (say 12 or 10 years) would certainly be challengeable as being manifestly inadequate.

I have done much judicial “soul-searching”. I have striven to see if, in the circumstances of this extremely serious treason case, there is any just alternative to a life sentence that might be appropriate for either or both of you. There is none, in my judgment. But, there is room and scope for some leniency and mercy (not only in your interests, but also in the interests of all the citizens of the Fiji Islands, and having regard to the notions of reconciliation, restorative justice and the like) in the “fixing” of the period which “must” be served.

Timoci Silatolu, taking into account the time spent in custody to date and all other appropriate factors, the sentence of the Court is that you, Timoci Silatolu, be sentenced to life imprisonment, and I “fix” a period of 9 years from today which “must” be served.

Josefa Nata, taking into account the time spent in custody to date and all other appropriate factors, the sentence of the Court is that you, Josefa Nata, be sentenced to life imprisonment, and I “fix” a period of 7 years from today which “must” be served.

(Andrew Wilson)
JUDGE

27 June, 2003